New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2005-010-038, Claim No. 107215


Inmate slip and fall in shower. Defendant did not have notice of condition.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
ROBERT NISHMAN, ESQ.By: Kenneth Becker, Esq., Of Counsel
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained on June 26, 2002 during his incarceration at Tappan Correctional Facility (Tappan), when he fell after exiting the shower on his housing unit. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
The shower area on
claimant's housing unit, 9-3 west, had four individual shower stalls. The stalls were three-sided cubicles made of concrete blocks. Tile covered cinder blocks separated the shower stalls from the tiled walkway. The walkway was three feet wide. There were no shower curtains.
Claimant testified that he entered the shower area wearing rubber slippers and carrying his towel and the clothes he intended to wear after his shower. Inmates could hang their belongings on hooks situated opposite each stall. The hooks were placed at a height of five feet nine inches, except for the hook opposite the last stall, which was positioned at a height of six and a half feet. Although no one else was using the showers, claimant chose the last stall and placed his belongings on the opposite hook.[1]
According to
claimant, the walkway was wet and soapy,[2] as usual. Claimant, however, never complained about the condition of the floor and was admittedly aware that he could have used a mop in that area. Claimant showered for 15 minutes and then stepped out of the stall and onto the tiled walkway. He was wearing his rubber slippers as he dried himself. According to claimant, as he moved to grab his clothes, his right foot "went under"[3] and he fell back towards the shower stall.
Bruce Carver, the plant supervisor at Sing Sing in 2002, testified that he
was responsible for overseeing maintenance at Tappan. He conceded that it was not unusual to see water in a shower area; however he maintained that the floor was not slippery. When questioned about the use of mats on the walkway outside the stalls, he explained that they were not used because, in his experience, floor mats could be used to conceal weapons.
Carver was familiar with the 1997 and 1999 Department of Correctional Services (DOCS) Directives addressing shower areas. Specifically, the 1997 Directive provided that, in shower areas, "[a]nti-slip strips will be installed to prevent slipping"
(Ex. 5, Directive 4064, dated April 4, 1997, Section [c][2]). The 1999 Directive superseded the 1997 Directive and provided that anti-slip strips "may" be installed. Anti-slip strips had never been installed (Ex. 6, Directive 4064, dated September 28, 1999, Section [c][2]).
Superintendent William J. Connolly[4]
has been employed by DOCS for 27 years and in 2002 he was the Deputy Superintendent of Security Services at Sing Sing where he was responsible for Tappan. He testified that Tappan was a medium security facility located within the maximum security facility of Sing Sing. The maximum security yard was in close proximity to the Tappan building and some of the inmates from Sing Sing worked at Tappan. Connolly also testified that shower mats were a security concern because they can conceal weapons or cover broken tiles which inmates have used to sharpen weapons. Additionally, Connolly stated that anti-slip strips were problematic because inmates have used the strips like sandpaper to fashion weapons.
Lieutenant Mark Royce testified that in June 2002, he was a housing sergeant at Tappan. As housing sergeant, Royce made rounds of the housing units, including the shower area of 9-3 west. If he observed water outside the showers, he made sure that porters set up wet floor signs. He did not recall any complaints about water not being addressed. Royce explained that shower curtains were not used because of security concerns. Specifically, it was important to have visibility in that area.

It is well established that the State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997). The State, however, is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850; Condon v State of New York, 193 AD2d 874). Additionally, when an inmate fails to use ordinary care and pursues a dangerous course of conduct, he must take responsibility for his own negligence (see Carter v State of New York, 194 AD2d 967).
In order to prevail on his claim, claimant must show: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was the proximate cause of claimant's accident; and that claimant sustained damages (
see Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum Inc., 234 AD2d 347; Mercer v City of NewYork, 223 AD2d 688, affd 88 NY2d 955).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the evidence presented was insufficient to establish that defendant had either actual or constructive notice of a foreseeably dangerous condition and failed to remedy it within a reasonable time (
see Pennie v McGillivary, 15 AD3d 639). Specifically, there was no credible proof that the walkway was unusually wet for a sufficient length of time prior to claimant's fall to permit defendant to discover and remedy it (see Deveau v C.F. Galleria at White Plains, LP, ___ AD3d ___ [2d Dept. May 23, 2005]). Moreover, even if this Court found claimant's testimony worthy of belief, that the walkway was usually wet, proof that defendant was aware of a recurrent condition in general is not sufficient to establish constructive notice of the particular condition which allegedly caused claimant to fall (see Gonzalez v Jenel Mgt. Corp., 11 AD3d 656, 657; McDuffie v Fleet Fin. Group, Inc., 269 AD2d 575). Under the circumstances, the Court finds that the absence of floor mats or anti-slip strips outside the shower stalls was not a contributing cause of claimant's fall. It is also noted that the applicable directive does not mandate that anti-slip strips be installed in shower areas (Ex. 6). In sum, claimant has failed to satisfy his burden of proof.
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


June 28, 2005
White Plains, New York

Judge of the Court of Claims

[1] Claimant, who is five feet, nine inches tall, testified at trial that he stood on his toes to reach the hook. At his examination before trial, however, he testified that he did not have to stand on his toes.
[2]At his examination before trial, claimant did not state that the floor was always wet; rather he testified that the floor was always dirty.
[3]All quotations are to the trial notes or audiotapes unless otherwise indicated.
[4] Connolly is now superintendent of Fulton Correctional Facility.